Nothing But Words

This entry is cross-posted at Daily Kos.

President Bush has repeatedly expressed his admiration for Justices Thomas and Scalia, who are by far the most conservative members of the Supreme Court. The religious right is vocally reminding him that he wouldn’t have been re-elected without their support, and with a vacancy on the Court, the Christian conservatives are calling in the debt. However, Bush’s popularity is well under the 50% mark, as is his support for the Iraq war, he’s losing his battle for changing Social Security, he’s got a deficit spending crisis on his hands, he can’t get his UN nominee John Bolton confirmed by the Senate, and the House even thumbed its nose at him recently, passing legislation for expanding federal support of stem cell research. As a second term President approaching lame duck status faster than most, he’s not in a strong position for pushing a controversial Supreme Court nominee through the Senate. So will he replace the moderate O’Connor with another moderate, or a “strict constructionist” in the mold of Thomas and Scalia?

In the aftermath of the 2004 election, I predicted that, when the time came, he would nominate a conservative to the liking of the religious right. I’ve changed my mind – I think he’ll nominate a moderate. Here are my reasons:

1. I used to think Bush would appoint someone friendly to the religious right because he played himself up as a true believer. But I’ve come to believe his attachment to the religious right has more to do with electoral exploitation than sincere beliefs. One reason for my change of heart is a story I heard Howard Dean share when I saw him debate Bill Bennett last Fall. He described an encounter with Bush when they were both governors. It’s a story he’s told elsewhere as well: “‘I hate those people,’ he’d once snarled at me when I ribbed him at a White House governors’ gathering about some trouble he was having in Texas with the Christian Coalition.” Also, if you read this interview with Al Franken, it seems that Bush doesn’t know all that much about what’s in the Bible, despite two years of Bible boot camp and his claim in the 2000 campaign that he reads the Bible daily.
2. The strongest argument in favor of Bush appointing a conservative is that he can’t afford to anger his base, and that the average voter doesn’t get worked up about Supreme Court nominees anyway, so why not give the religious right what it wants? I disagree with this for three reasons:
   1. He can afford to anger his base. His base can’t help him with all the problems I listed in the first paragraph. Bush won’t be running for re-election. Republican House and Senate members who need the Christian conservative vote will get it if they pander sufficiently. The religious right has become highly mobilized in recent years, and I don’t think they’ll sit out the 2006 election, even if they are angry with Bush (their anger at Bush will be outweighed by their almost hysterical fear of possible Democratic gains).
   2. The people who can help Bush right now are moderate Republicans. They can help him salvage something from his stalled Social Security initiative. They can help him get his nominees through the Senate. If Bush nominates a radical conservative to the Supreme Court, it will undoubtedly trigger a Democratic filibuster, causing Frist to pull the trigger on the “nuclear option.” The Democrats will then respond by shutting down the Senate. It’s unclear who would suffer the most politically if this were to happen, but there’s a good chance it would be Bush, and I don’t think he’s willing to take that chance. The average voter may not be very interested in Supreme Court nominees, but they would pay attention to a Senate shutdown, and all the mudslinging that would undoubtedly ensue.
   3. As a second term President, Bush is almost certainly thinking about the “L” word – no, not liberal – “legacy.” All things being equal, I’m sure he’d like to be remembered for putting a strong conservative on the bench. But given the current risks of trying to push one through, he probably doesn’t want to be remembered for another Bork-style flameout.

If Bush does choose a moderate nominee, and John McCain (or another moderate) emerges as the 2008 Presidential nominee, I think there’s a very real possibility of a GOP split, with the Christian conservatives putting up their own 3rd party candidate for the Presidency. Take a look at this Humphrey Institute poll from 2004:

The poll showed that in a one-on-one race with Kerry, Bush would win 87 percent of the GOP vote. But when given the option of Bush, Kerry, and a conservative third-party candidate, GOP support for Bush dropped to as low as 75 percent.

I think the support among conservatives would drop even lower if an avowed moderate got the 2008 Presidential nomination, especially if Bush doesn’t give the Christian conservatives someone they like on the Supreme Court. But my guess is that Bush isn’t thinking about 2008 right now. It’s more likely that he wants to make sure he ends up with something to show for his last three years as President.